How Conservatives Screwed Walker

Last week’s national blitz of bad publicity for Gov. Scott Walker was quickly blamed on liberals and Democrats, never mind that the chief investigator Francis Schmitz is a Republican who voted for Walker and that two district attorneys on his team are also Republicans. The release of John Doe documents charging that Walker was a central figure in a criminal scheme — which created the media frenzy — were “the accusations of partisans within a Democrat district attorney’s office” who cannot prove their case, and have therefore sought refuge in “the Court of Public Opinion,” Walker charged.

But the untold story, which the Milwaukee Journal Sentinel seems clueless about, is the role of conservatives in releasing these documents. Those same right-wing activists who spent millions to help Walker survive a 2012 recall election strongly supported the release of the Doe documents which gave him a black eye in the national media, and could provide fodder for negative ads in the race for governor. His reelection in 2014, it’s clear, is far less important to these conservatives than their far bigger goal: to overturn the restrictions on so-called “dark money” raised by their independent political advocacy groups. They hope to appeal their federal suit against the John Doe prosecutors — in which they argue that coordination between third party advocacy groups and election campaigns is perfectly legal —  all the way to the U.S. Supreme Court, which has been very receptive to challenges of campaign finance restrictions.

As I’ve previously written, the effort is being led by Eric O’Keefe, the wealthy political activist based in Spring Green, who is head of the Wisconsin Club for Growth. O’Keefe has worked with the Koch Brothers for some 35 years, and one of their key goal through all those years has been to end all campaign finance restrictions.

It was O’Keefe who turned the tables on Milwaukee County District Attorney John Chisholm, Schmitz and the other Doe investigators. O’Keefe hired a team of lawyers led by high-profile Washington attorney David Rivkin, Jr., to launch a federal suit against the John Doe investigators for allegedly violating the civil rights and freedom of speech of O’Keefe and the other targets of the John Doe. O’Keefe was outraged by the John Doe, which he declared was an attempt “to silence political speech it does not like.”

O’Keefe had earlier leaked information about the secret John Doe probe to The Wall Street Journal, and now documents from the Doe were part of a federal lawsuit, which is not secret. The documents in the case were therefore heavily redacted, even as they made their way on appeal to the Seventh Circuit of Appeals. And so media organizations petitioned the court to make the records public.

And that’s when a funny thing happened. None of the lawyers objected to this. The legal filing by Douglas Knott, the attorney for Chisholm and his assistant DAs, said that “The Milwaukee prosecutors do not oppose their exhibits being filed publicly without redaction. The plaintiffs, however, may feel differently.”

This was an obvious jab at O’Keefe and his lawyers, suggesting they wouldn’t want the negative information about Walker released. O’Keefe was suing Chisholm and company both professionally and personally, which was ominous, suggesting the prosecutors might be personally liable for court costs should they lose the case. Were they looking for some leverage, perhaps hoping O’Keefe might relent on the personal part of his suit? I emailed Knott with this question and he declined to comment.

But O’Keefe, it’s clear, wanted the Doe documents released. As Andrew Grossman, another attorney working for O’Keefe, would later put it, “These documents show how the John Doe prosecutors adopted a blatantly unconstitutional interpretation of Wisconsin law… to launch a secret criminal investigation targeting conservatives throughout Wisconsin… Sunlight is the best disinfectant.”

The one lawyer who would have no doubt objected to release of the documents was Steven Biskupic, representing Walker’s campaign. But the campaign was not a party to the federal lawsuit.

Biskupic, however, would have known that the lawyers, in their filings, had not objected to releasing the explosive documents. And soon after those filings were made, the news came out that Biskupic was trying to cut a deal with the Doe prosecutors to settle the case against his client.

The disclosure came, once again, from O’Keefe’s reliable ally, the Wall Street Journal, whose editorial page excoriated “Mr. Walker,” saying the governor “has to decide whose side he’s on… While the Club (for Growth) fights for its First Amendment rights to speak out on the issue, the Walker campaign apparently seeks to negotiate a settlement with the prosecutors that will keep the issue out of the spotlight.”

A condemnation from the Wall Street Journal is, of course, a nightmare prospect for anyone hoping to run as a Republican presidential candidate. Walker initially offered a legalistic response while not denying the attempt at a deal, which brought another editorial spanking (“Sorry, that’s disingenuous”) from the newspaper. Walker then backed down entirely, saying “I’m certainly not going to undermine anyone’s First Amendment rights. I’m frankly kind of shocked for anyone to suggest that.”

Walker has now claimed he never tried to cut a deal to settle the John Doe. But if so, why didn’t he initially deny this rather than waiting for several weeks, while getting roasted by the Wall Street Journal?

For that matter, why didn’t Biskupic deny this was going on? On May 28, I emailed Biskupic and wrote this: “The stories so far lead one to believe you approached Schmitz regarding a settlement. But some have theorized it was really Schmitz approaching you. Do your care to comment?” Rather than denying that negotiations were going on, Biskupic wrote: “Thanks, but I have no comment.”

The reality is that Walker decided he had no choice but to back off from trying to cut a deal on the John Doe, and so his new tack has been to claim the case has already been settled (untrue, it is on appeal) and to blame the release of the Doe documents on Democrats. But no one knew better than Walker that it was his conservative friends who wanted the damaging documents released.

If he had any doubt about the long-term goal of O’Keefe and his fellow conservatives, it was made clear by the second WSJ editorial: “The stakes in the federal lawsuit… are bigger than Mr. Walker’s campaign. They concern the prosecutorial machine that exists in Wisconsin, and in too many other states, to punish and limit political speech that is protected by the First Amendment.”

In summoning this image of Big Brother-like prosecutors mowing down our right to free speech, the WSJ was simply seconding the claims of O’Keefe and his lawyers, that groups like Wisconsin Club for Growth, as long as they don’t expressly advocate how people should vote, can coordinate with campaigns of political candidates. This would completely change how the law has treated these groups for decades, yet federal district court judge Rudolph Randa accepted the argument.

O’Keefe and the Club for Growth “have found a way to circumvent campaign finance laws,” Randa wrote, and that is apparently cause for commendation. “That circumvention should not and cannot be condemned or restricted,” he went on. “Instead, it should be recognized as promoting political speech.”

Now the case is getting reviewed by the Seventh Circuit Court of Appeals and whichever way it rules, the decision is likely to be appealed to the U.S. Supreme Court, which has showed an increasingly dim view of any campaign finance restrictions. Nor will it hurt that O’Keefe has a high-powered team of lawyers and will likely outspend the other side.

But O’Keefe wants even more than this long-coveted Supreme Court decision, which would open the doors to a flood of money from secret wealthy donors backing candidates across the land. Though conservatives have heaped blame of Chisholm for his allegedly partisan investigation, he is by all accounts rather apolitical and has prosecuted both Democrats and Republicans. Conservatives apparently believe someone else, some scurrilous Democratic operative, has put Chisholm up to the John Doe investigation.

O’Keefe’s attorney, David Rivkin, Jr., has said he’s looking forward to “wide-ranging” discovery. “We plan to serve discovery questions on a number of other people because we strongly suspect the defendants are not the only people whose fingers have been involved in driving this investigation there,” Rivkin said. “There may well be other individuals in the Wisconsin political establishment who have their finger on this.”

It’s an ominous warning by someone with a lot of money backing him.

Short Take

Progressive Magazine did a good story, that’s profusely documented, tracking the huge impact of Michael Grebe and the conservative Bradley Foundation in funding a long list of groups involved in this whole legal fight.